Mil 100-300

CHAPTER Mil 100 ORGANIZATIONAL RULES

Statutory Authority: RSA 184:93

PART Mil 101 DEFINITIONS

Mil 101.01 “Commissioner” means “commissioner”, as defined in RSA 184:79 XV.

Source. #5684, eff 8-9-93, EXPIRED: 8-9-99

New. #7313, eff 7-1-00

Mil 101.02 “Department” means “department” as defined in RSA 184:79 XIV.

Source. #5684, eff 8-9-93, EXPIRED: 8-9-99

New. #7313, eff 7-1-00

Mil 101.03 “Milk sanitation board” means “milk sanitation board” as defined in RSA 184:80.

Source. #5684, eff 8-9-93, EXPIRED: 8-9-99

New. #7313, eff 7-1-00

Mil 101.04 “New Hampshire Dairy Practices Committee” means the New Hampshire Dairy Practices Committee, an organization which monitors milk quality and promotes good milking practices. The committee consists of individuals who work in the dairy industry, academia, and state agencies and who have an interest in milk quality.

Source. #5684, eff 8-9-93, EXPIRED: 8-9-99

New. #7313, eff 7-1-00

Mil 101.05 “Pasteurized Milk Ordinance (PMO)” means the federal “Grade ‘A’ Pasteurized Milk Ordinance”, as incorporated by reference and amended in Mil 301.

Source. #7313, eff 7-1-00; ss by 9253-A, eff 8-30-08

PART Mil 102 DESCRIPTION OF BOARD

Mil 102.01 Members of the Milk Sanitation Board. The milk sanitation board shall consist of:

(a) The commissioner of the department of agriculture, markets, and food, or his or her designee;

(b) The commissioner of the department of health and human services or his or her designee;

(d) An individual who holds a milk plant license; and

(e) A total of 3 individuals who hold valid producer permits.

Source. #7313, eff 7-1-00; ss by #12862-A, eff 8-29-19

Mil 102.02 Meetings.

(a) The board shall hold meetings on the call of the chairman or the commissioner.

(b) Meetings shall be held at a location specified by the chairman or the commissioner.

Source. #7313, eff 7-1-00

Mil 102.03 Quorum. A quorum of the board for the purpose of conducting business shall consist of 4 members.

Source. #7313, eff 7-1-00; ss by #12862-A, eff 8-29-19

Mil 102.04 Presiding Officer. The board shall elect a chairman from among its members to be the presiding officer at meetings of the board.

Source. #7313, eff 7-1-00

Mil 102.05 Duties of Board. The board shall:

(a) Advise the commissioner on problems affecting the adequacy or sanitation of the milk supply;

(b) Conduct hearings on appeals regarding suspension, revocation, or denial of licenses and permits, and administrative fines imposed under He-P 2705.01; and

(c) Adopt rules pertaining to the sanitary production, processing, packaging, and handling of milk and milk products, bacterial standards for milk and milk products, and as otherwise described in RSA 184:93.

Source. #7313, eff 7-1-00

PART Mil 103 ACCESS TO PUBLIC INFORMATION

Mil 103.01 Record of Official Actions.

(a) Minutes shall be kept of all board meetings and all official actions taken by the board.

(b) These minutes shall record those members who participate in each vote and separately record the position of any members who choose to dissent, abstain, or concur.

(c) Board minutes shall be public records and be available for inspection within 144 hours of the meeting or vote in question.

Source. #7313, eff 7-1-00

Mil 103.02 Custodian of Records. The department shall be the custodian of the board’s records and respond to requests to examine those portions of the board’s records which are subject to public inspection.

Source. #7313, eff 7-1-00; ss by #12862-A, eff 2-29-19

Mil 103.03 Copies of Records.

(a) Persons desiring copies of board records shall submit a request which identifies as particularly as possible the information being sought and which agrees to pay a fee of $0.25 per copy to cover the costs of the photocopying and mailing of the requested records.

(b) If records are requested which contain both public and confidential information, the board shall delete the confidential information prior to sending the information to the requester.

Source. #7313, eff 7-1-00

CHAPTER Mil 200 PRACTICE AND PROCEDURE

Statutory Authority: RSA 184:93

PART Mil 201 PURPOSE, DEFINITIONS AND PRELIMINARY MATTERS

Mil 201.01 Purpose. This chapter provides rules of practice and procedure for the hearing of appeals by the milk sanitation board. The purpose of these rules is to allow the milk sanitation board to acquire sufficient information to reach fair and reasoned decisions.

Source. #7529, eff 7-12-01

Mil 201.02 Scope. The rules in this chapter shall apply to all hearings conducted by the milk sanitation board.

Source. #7529, eff 7-12-01

Mil 201.03 Definitions.

(a) “Board” means the milk sanitation board.

(b) “Commissioner” means the commissioner of the department of health and human services.

(d) “Evidence” means all information, other than argument, admitted and considered by the board as part of the hearing record.

(e) “File” means to place a document in the actual possession of the board.

(f) “Hearing” means the receipt and consideration by the board of data or argument, or both, by methods which are appropriate to the nature and scope of the issues being decided by the board.

(g) “Motion” means any request by a party to the board for a ruling or order relating to that proceeding.

(h) “Order” means a document issued by the board requiring a party to do or abstain from doing something, or deciding an appeal of a license or permit or some other property or privilege.

(i) “Party” means any person who participates in the appeal and was admitted as a party in the hearing.

(j) “Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization.

(k) “Presiding officer” means the board chairman or other member to whom the board chairman has delegated authority to preside over some or all aspects of a hearing.

Source. #7529, eff 7-12-01

Mil 201.04 Presiding Officer Authority. The presiding officer shall as necessary:

(a) Regulate and control the course of a hearing;

(b) Facilitate informal resolution of an appeal;

(d) Question any person who testifies;

(e) Cause a complete record of the hearing to be made; and

(f) Take any other action consistent with applicable statutes and rules necessary to conduct the hearing and complete the record in a fair and timely manner.

Source. #7529, eff 7-12-01

Mil 201.05 Conduct of Presiding Officer and Board Members. The presiding officer and board members, in the discharge of their official duties, shall observe and be governed by the following ethical standards of conduct:

(a) The presiding officer and board members shall avoid the appearance of impropriety in all activities;

(b) The presiding officer and board members shall conduct themselves in a manner which promotes public confidence in the integrity and impartiality of the board in particular and of the hearings process in general;

(1) Perform their duties impartially and diligently;

(2) Maintain order and decorum in proceedings before the board;

(3) Be patient and courteous to those persons who participate in the hearings process; and

(4) Dispose promptly of matters heard by the board.

(d) The presiding officer and board members shall not directly or indirectly solicit or accept any gift or gratuity from any person or party involved in any contested matter pending before the board; and

(e) Unsolicited gifts or gratuities shall be returned to the donor.

Source. #7529, eff 7-12-01

Mil 201.06 Withdrawal of Presiding Officer or Board Members.

(a) Upon his or her own initiative or upon the motion of any party, the presiding officer or any other board member shall withdraw from any hearing when good cause exists.

(b) Good cause shall exist if the presiding officer or board member:

(1) Has a direct interest in the outcome of a proceeding, including but not limited to a financial or family relationship;

(2) Has made statements or engaged in behavior which objectively demonstrates that he or she has prejudged the facts of a case; or

(3) Personally believes that he or she cannot fairly judge the facts of the case.

Source. #7529, eff 7-12-01

Mil 201.07 Waiver or Suspension of Procedural Rules or Orders. The board, upon its own initiative or upon the motion of any interested person, shall suspend or waive any procedural requirement or limitation imposed by this chapter provided:

(a) Reasonable notice is given to all affected persons;

(b) The proposed waiver or suspension appears to be lawful, and would be more likely to promote the fair, accurate and efficient resolution of issues properly pending before the board than would adherence to a particular procedural rule or requirement; and

Source. #7529, eff 7-12-01

Mil 201.08 Role of Department Staff. Unless called as witnesses, the department staff shall have no role in any hearing.

Source. #7529, eff 7-12-01; ss by #12862-A, eff 8-29-19

Mil 201.09 Appearances Before The Board.

(a) A person may appear in a proceeding by personal attendance or through the attendance of a representative appointed by the person.

(b) Representatives shall be knowledgeable about the subject matter of the appeal.

(c) The representative shall present to the board prior to the commencement of the hearing a letter signed by the person he or she is representing giving him or her the authority to act as representative.

Source. #7529, eff 7-12-01

Mil 201.10 Disqualification or Suspension.

(a) After notice and opportunity for a hearing and a finding of misconduct by any individual relating to representation before the board, the individual shall be disqualified from acting as a representative before the board.

(b) A finding of misconduct shall be based on the following actions or behaviors:

(1) Obstruction of fair, due process;

(2) Disruption of the orderly conduct of procedure; or

(3) Willful action which results in prejudice to other parties.

(c) If a representative is disqualified or suspended, the board shall postpone the matter to allow the party being represented to procure alternative representation.

Source. #7529, eff 7-12-01

Mil 201.11 Intervention.

(a) A non-party may intervene in any matter pending before the board under the provisions of RSA 541-A:32, by filing a motion stating facts demonstrating that:

(1) The non-party's rights or other substantial interests might be affected by the proceeding; or

(2) That the non-party qualifies as an intervenor under any provision of law.

(b) If the presiding officer determines that such intervention would be in the interest of justice and would not impair the orderly and prompt conduct of the hearing, a motion for intervention shall be granted.

Source. #7529, eff 7-12-01

Mil 201.12 Computation of Time.

(a) Unless otherwise specified, all time periods referenced in this chapter shall be calendar days.

(b) Computation of any period of time referred to in this chapter shall begin with the day after the action which sets the time period in motion, and shall include the last day of the period so computed.

(c) If the last day of the period so computed falls on a Saturday, Sunday or legal holiday, then the time period shall extend to include the first business day following the Saturday, Sunday or legal holiday.

Source. #7529, eff 7-12-01

PART Mil 202 PROCEDURE FOR HEARINGS

Mil 202.01 Commencement of Hearing. A hearing shall be commenced by an order of the department giving notice to the parties as required in RSA 184:87, RSA 184:91, RSA 184:90-a, and He-P 2705.01(c).

Source. #7529, eff 7-12-01

Mil 202.02 Notice of Hearing. The notice commencing a hearing shall contain the following:

(a) A statement of the time, place, and nature of the hearing;

(b) A statement of the legal authority under which the hearing is to be held;

(d) A short and plain statement of the issues presented; and

(e) A statement that each party has the right to have an attorney present to represent the party at the party’s expense.

Source. #7529, eff 7-12-01

Mil 202.03 Prehearing Conference. Any party may request, or the presiding officer shall schedule on his or her own initiative, a pre-hearing conference to consider one or more of the following:

(a) Offers of settlement;

(b) Simplification of the issues;

(d) Limitations on the number of witnesses;

(e) Changes to standard procedures desired during the hearing by consent of the parties;

(f) The distribution of written testimony, if any, and exhibits to the parties;

(g) Consolidation of examination of witnesses; and

(h) Any other matters which aid in the disposition of the proceeding.

Source. #7529, eff 7-12-01

Mil 202.04 Postponements or Continuance.

(a) Any party to a hearing may make an oral or written motion that a hearing be postponed or continued to a later date or time.

(b) If a postponement or continuance is requested by a party to the hearing, it shall be granted if the presiding officer determines that good cause has been demonstrated.

(1) The unavailability of parties, witnesses or attorneys necessary to conduct the hearing;

(2) The likelihood that the hearing will not be necessary because the parties have reached a settlement; or

(3) Any other circumstance that demonstrates that a postponement or continuance would assist in resolving the case fairly.

(d) If the later date, time and place are known at the time of the hearing that is being postponed or continued, the date, time and place shall be stated on the record.

(e) If the later date, time and place are not known at the time of the hearing that is being postponed or continued, the presiding officer shall issue a written scheduling order stating the date, time and place of the postponed hearing as soon as practicable.

Source. #7529, eff 7-12-01

Mil 202.05 Failure to Appear.

(a) Any party, to whom notice has been served in accordance with this chapter, who fails to appear and fails to request a postponement of the hearing prior to the scheduled time of the hearing at which evidence or argument shall be presented, shall have a decision rendered against him or her which shall result in adverse action.

(b) A party may move to strike such adverse decision upon a showing that failure to appear or request a postponement was for circumstances beyond the party's control.

Source. #7529, eff 7-12-01

Mil 202.06 Record of the Hearing. Verbatim records shall be kept of all hearings by the department, copies of which shall be available upon written request to the board.

Source. #7529, eff 7-12-01; ss by #12862-A, eff 8-29-19

Mil 202.07 Request for Information or Documents. Each party shall attempt in good faith to make complete and timely response to requests for the voluntary production of information or documents relevant to the hearing.

Source. #7529, eff 7-12-01

Mil 202.08 Burden of Proof.

(a) For purposes of this section, “by preponderance of the evidence” means what is sought to be proved is more probable than not.

(b) In a hearing held to determine whether a license or permit that has already been issued should be suspended, revoked, or not renewed, or whether an application for a new license or permit should be denied the department shall bear the overall burden of persuasion by a preponderance of the evidence.

(c) In a hearing to determine whether an administrative fine should be imposed the department shall bear the overall burden of persuasion by a preponderance of the evidence.

Source. #7529, eff 7-12-01

Mil 202.09 Testimony; Order of Proceeding.

(a) Any person offering testimony, evidence or argument shall state for the record his or her name, and role in the proceeding.

(b) If the person is representing another person, the person being represented shall also be identified.

(1) The party or parties bearing the burden of proof and such witnesses as the party may call; and

(2) The party or parties opposing the party who bears the overall burden of proof and such witnesses as the party may call; and

(3) Intervenors granted intervenor status in accordance with Mil 201.11.

Source. #7529, eff 7-12-01

Mil 202.10 Evidence.

(a) All documents, materials and objects offered as exhibits shall be admitted into evidence unless excluded by the presiding officer as irrelevant, immaterial, unduly repetitious or legally privileged.

(b) Objections to evidence offered may be made by the parties and shall be noted by the presiding officer.

(c) Documentary evidence may be submitted in the form of copies or excerpts if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

(d) A party, or his or her representative, may conduct cross examinations required for a full and true disclosure of the facts.

(e) If the board, through the presiding officer, officially notes a fact, such shall be stated and any party, upon timely request, shall be given the opportunity to show to the contrary.

(f) Transcripts of testimony and documents or other materials admitted into evidence shall be public records unless the presiding officer determines that all or part of a transcript or document is exempt from disclosure under RSA 91-A:5 or applicable case law.

Source. #7529, eff 7-12-01

Mil 202.11 Closing the Record.

(a) After the conclusion of the hearing, the record shall be closed and no other evidence received into the record, except as allowed by paragraph (b) of this section and Mil 202.12.

(b) Before the conclusion of the hearing, a party may request that the record be left open to allow the filing of specific evidence not available at the hearing.

(c) If the other parties to the hearing have no objection or if the board, through the presiding officer, determines that such evidence is necessary to a full consideration of the issues raised at the hearing, the board shall keep the record open for the time necessary for the party to file the evidence.

Source. #7529, eff 7-12-01

Mil 202.12 Reopening the Record. At any time prior to the issuance of the decision on the merits, the board, through the presiding officer, on the boards own initiative or on the motion of any party, shall reopen the record to receive relevant, material and non-duplicative testimony, evidence or arguments not previously received, if the board, through the presiding officer, determines that such testimony, evidence or arguments are necessary to a full and fair consideration of the issues to be decided.

Source. #7529, eff 7-12-01

Mil 202.13 Decisions.

(a) All decisions rendered by the board shall be:

(1) Made on the basis of the evidence admitted at the hearing or within the time period specified if the record is reopened pursuant to Mil 202.11 and the documents submitted in support thereof; and

(2) Agreed upon by a majority of the board.

(b) Board members who participate in a hearing shall not abstain from deciding the hearing.

(c) A written decision setting forth findings of fact, and conclusions of law drawn by the board, and any appropriate orders made by the board, shall be prepared.

(d) Specific requests for findings of fact or rulings of law filed by a party shall be affirmed or denied in the board’s order.

(e) The board shall send the final decision to the parties by registered mail within 10 days of the hearing.

Source. #7529, eff 7-12-01

PART Mil 203 REHEARINGS AND APPEALS

Mil 203.01 Filing and Content of Motion for Rehearing.

(a) A motion for rehearing shall be filed in writing within 30 days of the date of the board’s decision or order.

(b) A motion for rehearing shall:

(1) Identify each error of fact, error of reasoning, or error of law which the moving party wishes to have reconsidered;

(2) Describe how each error causes the board’s decision to be unlawful, unjust or unreasonable;

(3) State concisely the factual findings, reasoning or legal conclusion proposed by the moving party; and

(4) Include any other information as the moving party deems relevant and reliable.

Source. #7529, eff 7-12-01

Mil 203.02 Standard for Granting Motion for Rehearing. A motion for rehearing a case subject to appeal under RSA 541 shall be granted if it demonstrates that the board’s decision is unlawful, unjust or unreasonable.

Source. #7529, eff 7-12-01

Mil 203.03 Decision on Motion for Rehearing. The board shall grant or deny a motion for rehearing or suspend the order or decision pending further consideration within 10 days of the filing of the motion for rehearing.

Source. #7529, eff 7-12-01

Mil 203.04 Appeal of Board Decisions. Pursuant to RSA 541:6 all appeals of board decisions shall be to the supreme court.

Source. #7529, eff 7-12-01

PART Mil 204 RULEMAKING PUBLIC COMMENT HEARINGS

Mil 204.01 Purpose. The purpose of this part is to provide a uniform procedure for the conduct of public hearings at which comment from the general public will be solicited for evaluation and consideration by the board relative to rulemaking.

Source. #7529, eff 7-12-01

Mil 204.02 Scope. This part shall apply to all non-adjudicative hearings required by state law to be conducted by the board at which public comment shall be solicited.

Source. #7529, eff 7-12-01

Mil 204.03 Notice. Notice for rulemaking public comment hearings shall comply with RSA 541-A:6, I.

Source. #7529, eff 7-12-01

Mil 204.04 Presiding Officer.

(a) The hearing shall be presided over by the board chairman or a designee.

(b) The presiding officer shall:

(1) Call the hearing to order;

(2) Cause a recording of the hearing to be made;

(3) Recognize those who wish to be heard and establish the order thereof;

(4) Limit the time for each speaker, as set out in Mil 204.05 (b);

(5) Remove or have removed any person who disrupts the hearing;

(6) Adjourn the hearing; and

(7) Provide opportunity for the submission of written comments.

Source. #7529, eff 7-12-01; ss by #12862-A, eff 8-29-19

Mil 204.05 Public Participation.

(a) Any person who wishes to speak on the issue or issues which are the subject of the hearing shall place his or her name and address on a speakers' list before the last speaker on the list has finished speaking.

(b) All whose names appear on the speakers' list, as provided, shall be afforded reasonable time to speak at the hearing.

(c) Reasonable time shall be determined considering the number of people who wish to be heard, the time and the availability of the facility.

(d) The board, through the presiding officer, shall:

(1) Refuse to recognize a person who refuses to give his or her full name and address;

(2) When a group or organization wishes to comment, limit the group to no more than 3 spokespersons, provided that the members who are present shall be allowed to enter their names and addresses into the record as supporting the position by the group or organization;

(3) Revoke recognition of a speaker who speaks or acts in an abusive or disruptive manner; or

(4) Revoke recognition of a speaker who refuses to keep his comments relevant to the issue or issues which are the subject of the hearing.

(c) Written comments may be submitted any time from the time notice has been published until the record has been closed by the moderator, which shall not be less than 10 calendar days after the hearing.

(d) In the event that the number of speakers who wish to give oral testimony relevant to the issue or issues involved exceed that number which can be heard within a reasonable period of time subject to facility availability and length of the hearing, the hearing shall be reconvened pursuant to applicable provisions in RSA 541-A:11, III to afford such persons the opportunity to be heard. Speakers may elect to submit written testimony in lieu of additional oral hearing.

Source. #7529, eff 7-12-01

PART Mil 205 PETITIONS FOR RULEMAKING

Mil 205.01 Petition for Rulemaking.

(a) Any person may request the board to commence a proceeding for the purpose of adopting, amending, or repealing a rule by filing a written petition that contains:

(1) A statement of the petitioner's request for the proposed rule;

(2) The text of the proposed rule or a statement of the particular results intended by the petitioner's interest in the subject matter of the proposed rule;

(3) An identification of the particular rule sought to be amended or repealed;

(4) Any data or argument the petitioner believes would be useful to the board in deciding whether to commence a rulemaking proceeding; and

(5) Name, address, signature of petitioner and date of the petition request.

Source. #7529, eff 7-12-01

Mil 205.02 Disposition of Petition.

(a) The board shall consider all petitions for rulemaking and proceed pursuant to RSA 541-A:4.

(b) The board shall request additional data, or argument from the petitioner, or other interested persons to clarify the argument.

(1) Petitions shall be submitted to the board; and

(2) Within 30 days of the receipt of the petition, the board shall take one of the following actions:

a. Commence rulemaking in accordance with RSA 541-A:3, if the requested action is:

1. Within the board's authority; and

2. Consistent with and best implements state statutes affecting the board; or

b. Deny the petition, in writing, stating fully the reasons for denial.

Source. #7529, eff 7-12-01; ss by #12862-A, eff 8-29-19

PART Mil 206 DECLARATORY RULINGS

Mil 206.01 Petitions.

(a) Any person may request a declaratory ruling from the board on matters within its jurisdiction by a petition with the board.

(b) A petition for declaratory ruling shall also set forth the following information:

(1) The exact ruling being requested; and

(2) The statutory and factual basis for ruling, including any supporting affidavits or memoranda of a law.

Source. #7529, eff 7-12-01

Mil 206.02 Action on Petitions.

(a) The petitioner shall provide such further information or participate in such evidentiary or other proceedings as the board shall direct after reviewing the petition and any replies received.

(b) Within 90 days of receiving the petition, and after review and consideration, the board shall rule on the petition.

Source. #7529, eff 7-12-01

PART Mil 207 EXPLANATION AFTER ADOPTION

Mil 207.01 Explanation After Adoption.

(a) Any person may request an explanation regarding adoption of the rules pursuant to RSA 541-A:11, VII by submitting a request to the board.

(b) The request shall be considered and the board shall issue a response within 45 days after consideration.

Source. #7529, eff 7-12-01, EXPIRED: 7-12-09

CHAPTER Mil 300 MILK SANITATION

Statutory Authority: RSA 184:93, RSA 184:103

PART Mil 301 INSPECTION

Mil 301.01 Pasteurized Milk Ordinance.

(a) Each milk producer, milk plant, producer/distributor, and distributor of milk products as defined in RSA 184:79 shall comply with:

(1) The “Grade ‘A’ Pasteurized Milk Ordinance”, 2017 revision, of the United States Department of Health and Human Services, Public Health Service, Food and Drug Administration, available as noted in Appendix A and as amended pursuant to Mil 301.01(b);

(2) The 2017 revision of the “Procedures Governing the Cooperative State-Public Health Service/Food and Drug Administration Program of the National Conference on Interstate Milk Shipments”, available as noted in Appendix A; and

(3) The 2017 revision of the “Methods of Making Sanitation Ratings of Milk Shippers and the Certifications/Listings of Single-Service Containers and/or Closures for Milk and/or Milk Products Manufacturers”, available as noted in Appendix A.

(b) The deletions and amendments to the Pasteurized Milk Ordinance (PMO) shall be as follows;

(1) Delete sections 3, 9, 15, 16, 17, and Appendix P;

(2) Amend footnote number 1 found immediately prior to Appendix A to read, “State of New Hampshire”;

(3) Amend Section 7 item 9r, Utensils and Equipment - Construction, by adding the following under Administrative Procedure 7: “In all new installations of around the barn pipeline systems, the pipeline used shall be at least 2 inches in diameter. Smaller diameter pipelines shall be grandfathered in all existing facilities.”;

(4) Amend the dairy farm inspection report referred to in Appendix M as FDA Form 2359a and available at www.fda.gov/AboutFDA/ReportsManualsForms/Forms/default.htm as follows:

a. The statement “Inspection of your farm today...Grade A Pasteurized Milk Ordinance” shall be amended to read, “An inspection of your dairy farm today showed violations existing in the items marked below. A violation of either number 1a, 8a-c (5 point debit), 10a and 11a in conjunction, 15d, e, or g, or 18a or c, shall require a reinspection. To avoid regulatory action being taken against your producer permit, all items debited shall be corrected. Producer permits shall be suspended if repeat violations debited are not corrected.”;

b. Item number 1 shall be amended to include “Somatic Cell Count ......... (d)”;

c. Item number 15 shall be amended to include “Extra-label drugs properly labeled (name and address) and stored....(f)” and “Extra-label drugs properly labeled (directions for use, cautionary statement, withholding time, active ingredients).....(g)”;

d. Item number 18(c) shall be re-lettered as 18(d);

e. Item number 18 shall be amended to include “Milk properly agitated ...... (c)”; and

f. The following points shall be assigned to each item; and

1. Item 1a-1c (Abnormal milk), 5 points;

2. Item 1d (Somatic Cell), 5 points;

3. Item 2a-e (Milk barn/parlor construction), 1 point for each item;

4. Item 3a-b (Milk barn/parlor cleanliness), 3 points;

5. Item 4a-d (Cowyard), 3 points;

6. Item 5,1a-c (Milk room floors), 1 point;

7. Item 5,2a-b (Milk room walls and ceilings), 1 point;

8. Item 5,3a-d (Milk room lighting and ventilation), 2 points;

9. Item 5,4a-f (Milk room miscellaneous), 2 points;

10. Item 5,5a-c (Milk room cleaning facilities), 2 points;

11. Item 6a-b (Milk room cleanliness), 4 points;

12. Item 7a-d (Toilet), 4 points;

13. Item 8a-c (Water supply), 5 points if most likely to lead to contamination of water supply, 2 points if less likely to lead to contamination, not to exceed 5 points total debit for Item 8;

14. Item 9a-e (Utensils and equipment construction), 4 points;

15. Item 10a (Utensils and equipment cleaning), 5 points;

16. Item 11a (Utensils and equipment sanitizing), 5 points;

17. Item 12a-c (Storage), 2 points;

18. Item 13a-e (Milking - flanks, udders and teats), 5 points;

19. Item 14a-g (Protection from contamination), 3 points;

20. Item 15a-c and f (Drug and chemical control), 2 points;

21. Item 15d-e and g (Drug and chemical control), 5 points, not to exceed 7 points for Item 15a-g;

22. Item 16a-b (Hand-washing facilities), 2 points;

23. Item 17a-b (Personnel cleanliness), 1 point;

24. Item 18a-c (Cooling), 5 points;

25. Item 18d (Recording Charts), 1 point, not to exceed 5 points for Item 18a-d;

26. Item 19a-b (Insects and rodent control - manure disposal/bed packs), 3 points;

27. Item 19c-d (Insects and rodent control - outer openings/insects, rodents), 2 points;

28. Item 19e-f (Insect and rodent control - pesticides), 2 points;

29. Item 19g-h (Insect and rodent control - surroundings), 2 points; and

30. Bacteria Count, 10 points; and

(5) Amend the milk plant inspection report referred to in Appendix M as Form FDA 2359 and available at www.fda.gov/AboutFDA/ReportsManualsForms/Forms/default.htm as follows:

a. Replace statement “Inspection of your plant today…” with “Inspection of your milk plant, receiving station, transfer station or bulk tank cleaning facility today showed violations existing in the items marked below. A violation of 7a-d, 12a and 12c marked in conjunction, 15b, 16a(2), b(2),or 16b(3), 16c; or 17a, b, or d, shall require a reinspection. Receiving stations shall comply with Items 1-15 inclusive, 17, 20, and 22. Separation requirements of Item 5 do not apply. Transfer stations and bulk tank cleaning facilities shall comply with Items 1-15 inclusive, 20, and 22. Overhead protection is required. To avoid regulatory action being taken against your license all items debited shall be corrected. A license shall be suspended if repeat violations debited are not corrected.”; and

b. The following points shall be assigned to each item:

1. Item 1 (Floors), 1 point;

2. Item 2 (Walls and Ceilings), 1 point;

3. Item 3 (Doors and Windows), 2 points;

4. Item 4a (Lighting), 1 point;

5. Item 4b (Ventilation), 1 point;

6. Item 5 (Separate Rooms), 3 points;

7. Item 6 (Toilet/Sewage Disposal Facilities), 3 points;

8. Item 7 (Water Supply), 4 points;

9. Item 8 (Handwashing Facilities), 2 points;

10. Item 9 (Milk Plant Cleanliness), 3 points;

11. Item 10 (Sanitary Piping), 3 points;

12. Item 11 (Construction and Repair), 3 points;

13. Item 12a-b (Cleaning), 5 points;

14. Item 12c-f (Sanitization), 5 point;

15. Item 13 (Storage of Clean Equipment), 3 points;

16. Item 14 (Storage of Single-Services Articles), 2 points;

17. Item 15a (Protection from Contamination), 3 points;

18. Item 15b (Protection from Contamination - Cross Connections), 5 points;

19. Item 15c (Protection from Contamination – FSMA Related), 3 points;

20. Item 16a-b (1) (Indicating and Recording Thermometers), 4 points;

21. Item 16a-b (2) (Time and Temperature Controls), 15 points;

22. Item 16b-b (3) (Adulteration Controls), 3 points;

23. Item 16c (Regenerative Heating), 10 points;

24. Item 16d (Temperature Recording Charts), 4 points;

25. Item 17 (Cooling), 5 points;

26. Item 18 (Bottling and Packaging), 5 points;

27. Item 19 (Capping), 5 points;

28. Item 20 (Personnel Cleanliness), 1 point;

29. Item 21 (Vehicles), 1 point;

30. Item 22 (Surroundings), 2 points;

31. Bacterial Counts, 5 points; and

32. Coliform Counts, 10 points.

Source. #5684, eff 8-9, EXPIRED: 8-9-99

New. #7314, eff 7-1-00; ss by #7517, eff 6-28-01; ss by #9253-B, eff 8-30-08; ss by #10537, eff 5-1-14; ss by
#12862-B, eff 8-29-19

Mil 301.02 Installation of Milking Equipment. Plans for new or extensively remodeled cleaned-in-place milk pipeline systems on dairy farms, as required in the PMO, Section 7, item 9r, Administrative Procedures, shall be submitted to the department as follows:

(a) The plans shall be completed by the producer or installer and submitted at least 10 days prior to the proposed start date for installation, or remodeling of the system;

(b) The plans shall indicate if the intended work is a new installation or modification of an existing milking system;

(1) The name and address of the producer;

(2) The milk company to which milk is sold;

(3) The estimated volume of milk sold daily;

(4) The number and species of animals to be milked;

(5) The name, address and telephone number of the equipment installer;

(6) The proposed installation date;

(7) The specifications of the bulk tank;

(8) The configuration of the milking system;

(9) The specifications of the vacuum system;

(10) The specifications of the pipeline;

(11) The specifications of the wash system, including the water heater;

(12) The specifications of any optional equipment such as weigh jars, automatic take-offs, digital milk weight recorders, and precoolers; and

(13) The signature of installer;

(d) Only information specific to the particular installation shall be included on the plan submission;

(e) A detailed drawing of the proposed milking system and wash system shall be included with the plan submission;

(f) Any plan that encompasses all of the information required in (b) through (e) above shall be accepted as the plan submission, including the plans that are included in the Dairy Practices Council’s “Guideline for Effective Installation, Cleaning and Sanitizing of Milking Systems” (2007 Edition) and The Dairy Practices Council’s “Guideline for Installation, Cleaning and Sanitizing of Tie Barn Milking Systems” (2006 Edition), available as noted in Appendix A; and

(g) All automatic milking installations (AMIs) shall provide the specific manufacturer and model of the AMI to be installed, and the name, and address of the installer.

Source. #7314, eff 7-1-00; ss by #7517, eff 6-28-01; ss by #9253-B, eff 8-30-08; ss by #10537, eff 5-1-14; ss by
#12862-B, eff 8-29-19

Mil 301.03 Additional Requirements for Raw Milk Offered for Sale to Consumers.

(a) The following milk producers shall be exempt from the requirements in this section:

(1) Any milk producer, as defined in RSA 184:79, IX, who offers raw milk for direct sale to consumers only from the milk producer’s own farm or farm stand or at a farmers’ market and who does not meet the definition of a producer-distributor; and

(2) Any milk producer, as defined in RSA 184:79, IX, who qualifies for the licensing exemption under RSA 184:84, V.

(b) A producer-distributor, as defined in RSA 184:79, XI, means a milk producer who is also a milk distributor and sells more than an average of 80 quarts of milk per day.

(c) The following requirements shall apply to all milk producer-distributors and milk plants who offer raw milk for sale to consumers, either directly from the farm or plant or through a retail outlet, and who are licensed under the provisions of RSA 184:84, regardless of the actual volume of raw milk sold:

(1) The procedures, handling, equipment and facilities used in the production and handling of raw milk offered for sale to consumers shall comply with all provisions of the PMO as adopted and amended in Mil 301.01;

(2) Any person who bottles or handles raw milk offered for sale to consumers, who has a communicable disease shall be prohibited from handling the raw milk, and any equipment or containers which may come in contact with the raw milk;

(3) All workers filling and capping bottles shall wear effective hair coverings, and shall wash their hands immediately prior to starting and as necessary throughout the filling operation;

(4) All bulk milk storage tanks or other containers used to store raw milk prior to bottling shall be washed and sanitized at least once every 48 hours;

(5) All containers and closures shall be stored and handled in a sanitary manner to prevent contamination;

(6) Single-service containers and closures shall not be reused;

(7) Multiple use containers shall be washed, rinsed, sanitized and drained no more than 4 hours prior to filling, such as by using a 3-compartment sink or a commercial dishwasher with a chemical sanitizer step;

(8) Containers provided and washed by the consumer shall be exempt from the washing and sanitizing requirements in (c)(7) above, provided:

a. The filled bottles are only sold back to the consumer who originally washed and provided them; and

b. Any consumer-washed bottles with visible filth or contamination shall not be refilled;

(9) All milk sold for consumption as raw milk shall be:

a. Tested for antibiotic residues prior to sale; or

b. Labeled, or exempted from labeling, as follows:

1. The label on the container for retail sale shall bear the following statement: “This raw milk has not been tested for antibiotic residues prior to sale.”;

2. The warning statement in 1. above shall be in letters of contrasting color to the label and in type no less than 1/8-inch in height;

3. Raw milk sold only at the farm where it is bottled shall be exempt from the labeling requirement in b.1. and b.2. above provided there is a sign with the following statement on it: “This raw milk has not been tested for antibiotic residues prior to sale” which is posted conspicuously in the area where the milk is sold and placed in a location where it can easily be observed by anyone entering therein; and

4. The sign in 3. above shall be no less than 8 inches by 11 inches in size with contrasting lettering no smaller than 1/2-inch in height;

(10) All milking animals shall be tested for tuberculosis and brucellosis within the 12 months prior to a producer-distributor obtaining a license and once every 3 years thereafter;

(11) The most recent milk quality testing results shall be conspicuously posted where the milk is sold on the farm and made available to retail customers purchasing raw milk in stores;

(12) The producer-distributor shall have a written procedure, developed in consultation with the department, for recalling product and notifying consumers if testing of the raw milk indicates the presence of pathogens; and

(13) The recall procedure shall be kept on file at the producer-distributor’s facility.

(d) The recall procedure in (c)(12)-(13) above shall be kept on file at the department.

(e) The following requirements shall apply to persons meeting the production levels of a Class 4 Milk Sanitation License as designated in He-P 2706.01(a):

(1) Filling shall be done using suitable stainless steel piping equipped with a positive shut off valve and shall not be done through dipping or ladling of the milk;

(2) Capping may be done by hand provided the operator is wearing clean, disposable plastic gloves; and

(3) During filling, the pouring lip of the container shall be protected from overhead contamination by the use of a drip deflector installed on the filling device.

(f) The following requirements shall apply to persons meeting any Milk Sanitation License classification other than Class 4 as designated in He-P 2706.01(a):

(1) Filling and capping shall be done in a sanitary manner to prevent contamination using mechanical equipment that complies with Section 7 of the PMO; and

(2) The pouring lip of the container shall be protected from overhead contamination until the cap is placed on the container.

(g) All raw milk offered for sale to consumers shall be labeled, or exempted from labeling, as follows:

(1) All containers shall be clearly labeled as “Raw Milk”;

(2) All containers shall clearly indicate through word or vignette what species of animal the milk is from such as, but not limited to, cows, goats or sheep;

(3) All labels shall contain the producer’s name, address and zip code;

(4) All labels shall state the net amount of the contents;

(5) All containers for retail sale shall bear the following statement: “Raw milk is not pasteurized. Pasteurization destroys organisms that may be harmful to human health.”;

(6) The warning statement in (5) above shall be in letters of contrasting color to the label and in type no less than 1/8-inch in height;

(7) Raw milk sold only at the farm where it is bottled shall be exempt from the labeling requirement in (5) above provided there is a sign with the following statement on it: “Raw milk is not pasteurized. Pasteurization destroys organisms that may be harmful to human health” posted conspicuously in the area where the milk is sold and placed in a location where it can easily be observed by anyone entering therein;

(8) The sign in (7) above shall be no less than 8 inches by 11 inches in size with contrasting lettering no smaller than 1/2-inch in height;

(9) All containers shall be labeled with a “sell by” or code date as determined by the producer-distributor;

(10) The producer-distributor shall adjust its sell by or code date if the raw milk does not remain in compliance with quality standards until the sell by date or expected end of the code; and

(11) Milk bottled in containers provided by the consumer shall be exempt from the labeling requirements above except that (7) and (8) above shall still apply.

(h) All raw milk offered for sale to consumers shall meet the following standards:

(1) The standard plate count of bottled raw milk shall not exceed 20,000 colonies per milliliter;

(2) The somatic cell count of bottled raw milk shall meet the standards in Section 6 of the PMO as adopted in Mil 301;

(3) The Coliform bacteria count of bottled raw milk shall not exceed 10 per milliliter;

(4) Bottled raw milk shall contain no drug residues or other inhibitory substances at or above tolerance levels for drugs or other inhibitors as defined in Appendix N of the PMO as adopted in Mil 301; and

(5) Bottled raw milk shall be kept cooled to a temperature of 40 degrees Fahrenheit or less until delivered to the consumer.

(i) Samples of bottled raw milk shall be collected by the department from each licensed bottler at least once each month for analysis to determine compliance with the above standards.

(j) Raw milk shall be tested for pathogens as follows:

(1) Raw milk that exceeds the Coliform standard in (h)(3) above on 3 out of any 5 consecutive samples shall be tested for pathogens;

(2) Pathogens tested for shall include, but not be limited to, E. coli 0157:H7, Listeria monocytogenes, Campylobacter, and Salmonella;

(3) If any pathogens are detected in the raw milk:

a. The producer-distributor shall recall all product which has been offered for sale;

b. The producer-distributor shall cease sales of raw milk until retesting indicates there are no longer pathogens in the milk;

c. Sales shall be permitted to resume when one test is free of pathogens;

d. A follow-up pathogen test shall be conducted within 30 days;

e. All samples for pathogen testing shall be collected by the department; and

f. If the producer-distributor does not recall product or cease sale of raw milk as required, it shall be subject to administrative fines as designated in He-P 2705; and

(4) If no pathogens are detected in the raw milk, the next sample collected from the producer-distributor which exceeds the standard for coliform shall be considered the first sample in determining when 3 of 5 samples have exceeded the standard.

Source. #9253-B, eff 8-30-08; ss by #10537, eff 5-1-14

Mil 301.04 Raw Milk Yogurt.

(a) Yogurt made with raw milk shall be sold or offered for sale in the state of New Hampshire only, pursuant to RSA 184:30-a and RSA 184:84, V.

(b) All raw milk yogurt shall be made in a facility licensed under the provisions of RSA 184:84 unless the producer-distributor meets the specific exemptions in RSA 184:84, V, and only offers their product directly to consumers at their own farm or farm stand or at a farmers’ market.

(c) All raw milk yogurt shall be produced, packaged and handled in compliance with the requirements for bottled raw milk in Mil 301.03(c)–(e).

(d) All raw milk used for the production of raw milk yogurt shall be tested for the presence of antibiotic residues before it is processed into raw milk yogurt.

(e) Raw milk yogurt shall be labeled, or exempted from labeling, as follows:

(1) All containers shall be clearly labeled as “Raw Milk Yogurt”;

(2) All containers shall clearly indicate through word or vignette what species of animal the milk used to make the yogurt is from, such as, but not limited to, cows, goats or sheep;

(3) All labels shall contain the producer’s name, address and zip code;

(4) All labels shall include a list of all ingredients in descending order of predominance;

(5) All labels shall state the net amount of the contents;

(6) All containers shall bear the following statement: “Raw milk is not pasteurized. Pasteurization destroys organisms that may be harmful to human health.”;

(7) The warning statement in (6) above shall be in letters of contrasting color to the label and in type no less than 1/8-inch in height;

(8) Raw milk yogurt sold only at the farm where it is manufactured shall be exempt from the labeling requirement in (6) above provided there is a sign with the following statement on it: “Raw milk is not pasteurized. Pasteurization destroys organisms that may be harmful to human health” posted conspicuously in the area where the milk is sold and placed in a location where it can easily be observed by anyone entering therein;

(9) The sign in (8) above shall be no less than 8 inches by 11 inches in size with contrasting lettering no smaller than 1/2-inch in height;

(10) All containers shall be labeled with a “sell by” or code date as determined by the manufacturer; and

(11) The manufacturer shall adjust their sell by or code date if the raw milk yogurt does not remain in compliance with quality standards until the sell by date or expected end of the code.

(f) All raw milk yogurt offered for sale to consumers shall meet the following standards:

(1) The Coliform bacteria count of raw milk yogurt shall not exceed 10 per milliliter; and

(2) Packaged raw milk yogurt shall be kept cooled to a temperature of 40 degrees Fahrenheit or less until delivered to the consumer.

(g) Each licensed manufacturer shall allow samples of raw milk yogurt to be collected by the department at least once each month for analysis to determine compliance with the above standards.

Source. #10537, eff 5-1-14

APPENDIX A: Incorporation by Reference Information

Rule	Title	Publisher; How to Obtain; and Cost
Mil 301.01(a)(1)	“Grade ‘A’ Pasteurized Milk Ordinance” (2017 Revision)	Publisher: U.S Department of Health and Human Services/U.S. Food & Drug Administration Cost: Free of Charge The incorporated document is available at: https://www.fda.gov/downloads/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/Milk/UCM612027.pdf
Mil 301.01(a)(2)	“Procedures Governing the Cooperative State-Public Health Service/Food and Drug Administration Program of the National Conference on Interstate Milk Shipments” (2017 Revision)	Publisher: U.S Department of Health and Human Services/U.S. Food & Drug Administration Cost: Free of Charge The incorporated document is available at: https://www.fda.gov/downloads/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/Milk/UCM594813.pdf
Mil 301.01(a)(3)	“Methods of Making Sanitation Ratings of Milk Shippers and the Certifications/Listings of Single-Service Containers and/or Milk Products Manufacturers” (2017 Revision)	Publisher: U.S Department of Health and Human Services/U.S. Food & Drug Administration Cost: Free of Charge The incorporated document is available at: https://www.fda.gov/downloads/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/Milk/UCM600123.pdf
Mil 301.02(f)	“Guideline for Effective Installation, Cleaning and Sanitizing of Milking Systems” (2007 Edition)	Publisher: The Dairy Practices Council Cost: $13.00 The incorporated document is available at: https://www.dairypc.org/catalog/guidelines/all-guideline-listing/effective-installation-cleaning-and-sanitizing-of-milking-systems
Mil 301.02(f)	“Guideline for Effective Installation, Cleaning and Sanitizing of Tie Barn Milking Systems” (2006 Edition)	Publisher: The Dairy Practices Council Cost: $11.50 The incorporated document is available at: https://www.dairypc.org/catalog/guidelines/all-guideline-listing/installation-cleaning-sanitizing-tie-barn-milking-systems

APPENDIX B

RULE NUMBER	RSA/FEDERAL CITATION
Mil 101.01 – Mil 101.04	RSA 184:79, RSA 184:80 and US FDA Pasteurized Milk Ordinance
Mil 101.05	RSA 184:82 and RSA 184:82-a
Mil 102.01	RSA 184:80 and RSA 184:81
Mil 102.02	RSA 184:80 and RSA 184:81
Mil 102.03	RSA 184:81
Mil 102.04	RSA 184:81
Mil 102.05	RSA 184:82 and RSA 184:82-a
Mil 103.01	RSA 184:81
Mil 103.02	RSA 184:80
Mil 103.03	RSA 184:80

Mil 201.01	RSA 541-A:30-a I
Mil 201.02
Mil 201.03	RSA 184:79, and RSA 541-A:30-a, I
Mil 201.04	RSA 541-A:30-a, I
Mil 201.05	RSA 541-A:30-a, III
Mil 201.06	RSA 541-A:30-a, III
Mil 201.07	RSA 541-A:30-a, III
Mil 201.08	RSA 541-A:30-a, III
Mil 201.09	RSA 541-A:30-a, III
Mil 201.10	RSA 541-A:30-a, I
Mil 201.11	RSA 541-A:30-a, III, and RSA 541-A:32, I
Mil 201.12	RSA 541-A:30-a, III
Mil 202.01	RSA 541-A:30-a, I
Mil 202.02	RSA 184:87, RSA 184:90-a, RSA 184:91, RSA 541-A:30-a, I, and RSA 541-A:31, III
Mil 202.03	RSA 541-A:30-a, I, and RSA 541-A:31, V
Mil 202.04	RSA 541-A:30-a, III
Mil 202.05	RSA 541-A:30-a, I
Mil 202.06	RSA 541-A:30-a, I
Mil 202.07	RSA 541-A:30-a, III
Mil 202.08	RSA541-A:30-a, I
Mil 202.09	RSA 541-A:30-a, I, RSA 541-A:33, II, and RSA 541-A:33, III
Mil 202.10	RSA 541-A:30-a, I
Mil 202.11	RSA 541-A:30-a, I
Mil 202.12	RSA 541-A:30-a, I, and RSA 541-A:35
Mil 203.01	RSA 184:94, RSA 541:3, and RSA 541:4
Mil 203.02	RSA 184:94, and RSA 541:3
Mil 203.03	RSA 184:94, and RSA 541:5
Mil 203.04	RSA 184:94, and RSA 541:6
Mil 204.01	RSA 541-A:11, I
Mil 204.02	RSA 541-A:11, I
Mil 204.03	RSA 541-A:6, I
Mil 204.04	RSA 541-A:11; RSA 541-A:16, I(b)(3)
Mil 204.05	RSA 541-A:11
Mil 204.06	RSA 541-A:11, VII
Mil 205.01	RSA 541-A:4, and RSA 541-A:16,I
Mil 205.02	RSA 541-A:16, I(c); RSA 541-A:4
Mil 206.01	RSA 541-A:16, I
Mil 206.02	RSA 541-A:16, I

Mil 301.01	RSA 184:93, I; RSA 184:103; and 21 CFR 133.129
Mil 301.02	RSA 184:93, I; RSA 184:103; and 21 CFR 133.129
Mil 301.03	RSA 184:84, V; RSA 184:93, I(g)
Mil 301.04	RSA 184:30-a; RSA 184:84, V